MUHAMMAD SIDDIQUE Versus THE STATE
This criminal appeal has been directed against the impugned judgment, dated 22-3-1989 passed by Mr. Azad Muhammad Awan, Additional Sessions Judge, Sheikhupura, whereby the appellant was convicted under section 302, P.P.C. to undergo imprisonment for life with a fine of Rs.10,000, in default whereof to suffer further R.I. for 2 years. The appellant was also ordered to pay Rs.10,000 as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C. and in case of failure of its payment, to suffer further R.I. for 6 months.
2. Briefly the prosecution case is that P.W.3 Kala father of the deceased Nazir on 15-8-1987 at 8-30 a.m. at bus stop Ali Judge, Syedwala made a statement Exh.P.B. before P.W.5 Fazal Hussain, A.S.I to the effect that he was resident of Chak No.12/68 Gharbi and was a cultivator. About 2 years earlier to the present occurrence, his son had abducted Mst. Shahnaz and due to which the case against the complainant P.W.3 and his sons, five persons, in all was registered. About 3/4 months ago the complainant and others were released on bail in. the said case and had come to their house. The accused party had nourished a grudge and on the day of occurrence at about 5-00 p.m. P.W.3 Kala alongwith his deceased son Nazar Muhammad set out from their house for Kharas for grinding the wheat and when they reached the street, from the front side at a distance of about 35/36 Karams Muhammad Siddique armed with rifle, Rehman armed with gun, Sharif armed with pistol, Shahzad armed with rifle and Hanif armed with a hatchet (acquitted co-accused) were standing. Shehzad alias Shera, Sharif and Hanif (acquitted co-accused) raised Lalkara that they would teach them a lesson of abduction of the girl and would kill both of them, on which Siddique appellant while running forward fired at the deceased, which hit on his neck, who fell down. To save his life the complainant took shelter beside the wall and raised hue and cry, on which Yar Muhammad son of the complainant P.W. (given up) and Bashir Ahmad, his son-in-law (P.W.4) who were present at the shop of one Mistri Ghulam Muhammad for the repair of their ploughs and after hearing fire-shots they immediately came out. Many other persons of the village also reached after hearing fire-short and the appellant alongwith the acquitted co-accused while firing and raising Lalkaras escaped. The complainant P.W.3 further stated that the occurrence was witnessed besides himself by Yar Muhammad P.W. (given up) and Bashir Ahmad (P.W.4). The deceased Nazar Muhammad had succumbed to his injuries at the spot. P.W.5 Fazal Hussain, A.S.I. scribed the complaint Exh.P.B. and sent the same to the police station, where the formal F.I.R. Exh.P.B./1 was recorded by Hassan Ali, Moharrir A.S.I. (P.W.9).
3. The prosecution examined 9 P.Ws. in all to substantiate its case. The motive behind the occurrence was stated by P.W.3 complainant and P.W.4 Bashir Ahmad who had stated that due to the abduction of Mst. Shehnaz Bibi by Yar Muhammad a case was registered against the complainant and his sons and they were released on bail by the trial Court. It has been contended that Mst. Shehnaz Bibi who was abducted by Yar Muhammad was sister of Muhammad Sharif (acquitted co-accused). The motive was against Yar Muhammad as he had abducted Mst. Shehnaz Bibi, but not against the deceased Nazar Muhammad. P.W3 had also stated during cross-examination that Yar Muhammad was also present with P.W3 and the deceased at the time of commission of the offence. The appellant had not fired at Yar Muhammad nor even the acquitted co-accused had launched murderous assault on said Yar Muhammad in spite of his presence at the relevant time. Yar Muhammad was released on bail earlier. to the present occurrence and motive was against him. The land of the complainant party was adjacent to the land of the appellant and despite the presence of Yar Muhammad in the village he was never assaulted or attacked by the appellant party. In view of the facts and circumstances of the case, I am of the view that motive was not proved against the appellant. P.W.3 Kala complainant is the father of the deceased, whereas P.W.4 is sister's husband of the deceased, who was originally resident of Kalsan, District Sahiwal, and had stated in the Court that he had settled in the village about 1-1/2 years earlier to the present occurrence. P.W. Yar Muhammad, brother of the deceased was given up by the prosecution. A case was previously registered against the complainant, his son Yar Muhammad and 3 others, but not against the deceased. There was criminal litigation going on between the parties. P.W.3 and P.W.4 have stated during cross-examination and even in Exh.P.B. it has been explained that after hearing the fire-shots, the persons of the vicinity had assembled, but none of them was cited or produced as P.W. The statements furnished by P.W.3 and P.W.4 cannot be relied upon unless corroborated by some very strong evidence on record.
4. The doctor who conducted the autopsy on the dead body of the deceased could not be produced as he had died and secondary evidence was furnished by the statement of P.W.2 Mushtaq Ahmad, Dispenser. The post?mortem report Exh.PA. reveals about the receipt of two injuries by the deceased by fire-arm. Injury No.l was lacerated wound 1/2 c.m. x 1/2 c.m. on the lower front neck. The same has been stated by P.W.3 in his complaint Exh.P.B. as well as in his statement before the trial Court. Injury No.2 was a lacerated wound 1/2 c.m. x 1/2 c.m. x through and through on the lower outer front of left upper arm and exit wound on the inner lower left upper arm with everted margin, which has not been stated by P.W.3 complainant in his complaint Exh.P.B. nor in his statement before the trial Court, nor by P.W.4 Bashir Ahmad. The medical evidence in the shape of Exh.PA. is not in consonance with the ocular testimony furnished by the statements of P.W.3 and P.W.4. Even in the injury statement Exh.P.F. and the Inquest Report Exh.P.G. there is mention of only one injury i.e. on the neck.
5. It has been stated by the complainant (P.W.3) that the appellant alongwith the acquitted co-accused had also fired in the air with their respective weapons and no empty was secured by the police from the place of occurrence. The recovery of rifle P.4 at the instance of the appellant which was secured by P.W.6 Muhammad Zafarullah, Inspector vide memo. Exh.P.E. attested by P.W.4 and P.W. Yar Muhammad (given up) has no consonance.
6. The appellant when examined under section 342, Cr.P.C. denied the prosecution evidence against him and also recovery of rifle P.4. He further stated that he had been involved due to enmity. He neither made statement on oath as envisaged under section 340(2), Cr.P.C., nor produced defence evidence.
7. Pursuant to the above discussion I am of the view that the case against the appellant was not free from doubt and giving him the benefit of doubt, his appeal is allowed and he is acquitted of the charge. The appellant is in jail, who shall be released forthwith if not required in any other case.
N.H.Q./M-765/L ???????????????????????????????????????????????????????????????????????????????? Appeal allowed.